Workers' Compensation and the ADA--Reasonable Accommodations

The ADA requires that an employer make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship.
The following provides specific information regarding reasonable accommodation in the context of workers' compensation. 

The ADA does not require an employer to provide a reasonable accommodation for an employee with an occupational injury who does not have a disability as defined by the ADA-AA. However, nothing in the ADA prohibits an employer from making a workplace modification that is not a required form of reasonable accommodation under the ADA for an employee with an occupational injury in order to offset workers' compensation costs. For example, the ADA does not require employers to lower production standards to accommodate individuals with disabilities. However, an employer is clearly permitted to lower production standards for an occupationally injured employee as a way of returning the employee to work more quickly.

Vocational Rehabilitation Services
An employer cannot substitute vocational rehabilitation services in place of a reasonable accommodation required by the ADA for an employee with a disability-related occupational injury. An employee's rights under the ADA are separate from his/her entitlements under a workers' compensation law. The ADA requires employers to accommodate an employee in his/her current position through job restructuring or some other modification. If it would impose an undue hardship to accommodate an employee in the current position, then the ADA requires that an employer reassign the employee to a vacant position that the employee can perform, absent undue hardship.

Reallocation of Job Duties
Reallocation of job duties is considered a reasonable accommodation if the duties to be reallocated are marginal functions of the position. A position may be restructured by reallocating or redistributing the marginal functions that the employee cannot perform because of the disability. Employers are not required to eliminate or restructure essential functions of the position. 

Reassignment
An employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position instead of first trying to accommodate the employee in the position held at the time the injury occurred. An employer must first assess whether the employee can perform the essential functions of the original position, with or without a reasonable accommodation. Reassignment should be considered only when an accommodation to theemployee's original position is not possible or would impose an undue hardship.

When an employee can no longer perform the essential functions of his original position, with or without a reasonable accommodation, because of a disability-related occupational injury, an employer must reassign the empoyee to an equivalent vacant position for which the employee is qualified, unless doing so would cause the employer undue hardship. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which the employee is qualified, absent undue hardship.

Note: Employers are not required to create new positions or to bump another employee from a position in order to reassign an employee who can no longer perform the essential functions of his or her original position.

Leave from Work
When an employee requests leave as a reasonable accommodation under the ADA because of a disability-related occupational injury, an employer may provide an accommodation that allows the employee to stay on the job instead. 

An employer is not obligated to provide an employee's preferred accommodation as long as the employer provides an effective accommodation -- one that is sufficient to meet the employee's job-related needs.   Accordingly, an employer may provide a reasonable accommodation that requires an employee to remain on the job, in lieu of providing leave by accommodations such as reallocating marginal funtions, or providing a temporary reassingment.  

The employer is obligated, however, to restore the employee's full duties or to return the employee to his/her original position once the employee has recovered sufficiently to perform the position's essential functions, with or without a reasonable accommodation.

However, if an employee with a disability-related occupational injury does not request a reasonable accommodation, but simply requests leave that is routinely granted to other employees (e.g., accrued paid leave or leave without pay), an employer may not require the employee to remain on the job with some type of adjustment unless it also requires employees without disabilities who request such leave to remain on the job with some type of adjustment.

Note: If an employee qualifies for leave under the Family and Medical Leave Act, an employer may not require him/her to remain on the job with an adjustment in lieu of taking a leave of absence. 29 C.F.R. § 825.702(d)(1) (1995).)    

May an employer satisfy its ADA obligation to provide reasonable accommodation for an employee with a disability- related occupational injury by placing him/her in a workers' compensation vocational rehabilitation program?